RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3991-19

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

J..J.-H., 

Defendant-Appellant,

and

J.H., F.J., and G.H.,

Defendants.,

__________________________

IN THE MATTER OF JO.H. 

and J.H., minors.

__________________________

Submitted April 26, 2021 – Decided July 29, 2021

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Camden County, 

Docket No. FN-04-0825-18.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3991-19

Joseph E. Krakora, Public Defender, attorney for 

appellant (Patricia Nichols, Assistant Deputy Public 

Defender, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Donna Arons, Assistant Attorney General, 

of counsel; Mary L. Harpster, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, attorney for minor 

Jo.H. (Meredith Alexis Pollock, Deputy Public 

Defender, of counsel; Margo E. K. Hirsch, Designated 

Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for minor 

J.H. (Meredith Alexis Pollock, Deputy Public 

Defender, of counsel; Damen J. Thiel, Designated 

Counsel, on the brief).

PER CURIAM

Defendant appeals from a June 7, 2019 Family Part order finding she 

abused/neglected her ten-year-old great-nephew, J.H.,1 by administering 

excessive corporal punishment, N.J.S.A. 9:6-8.21(c). Defendant does not 

dispute she struck J.H. with a belt as punishment for the child's behavior at 

school but challenges the trial court's finding that the corporal punishment was 

excessive. She also contends she was denied counsel at critical stages of the 

1

 We use initials to protect the identity of the child. R. 1:38-3(d)(12).
3 A-3991-19

litigation and that the attorney who was eventually appointed to represent her 

rendered ineffective assistance. After carefully reviewing the record in view of 

the applicable legal principles, we reject defendant's contentions and affirm. 

I. 

On June 22, 2018, the Division of Child Protection and Permanency (the 

Division) filed a verified complaint and order to show cause (OTSC) for custody 

of J.H. and Jo.H.2

 The Division completed its investigation in August 2018. A 

fact-finding hearing was scheduled for October 18, 2018 but was postponed for 

nearly four months because defendant filled out a form requesting representation 

by the Public Defender just before the hearing began. The fact-finding trial 

occurred on February 25 and June 7, 2019. The court rendered a comprehensive 

oral opinion, finding that defendant abused/neglected J.H. by inflicting 

excessive corporal punishment. On April 15, 2020, the court conducted a virtual 

hearing and issued an order terminating litigation, finding that the conditions 

had been remediated. 

We briefly recount the facts relevant to this appeal that were adduced at 

the fact-finding hearing. J.H. is on the autism spectrum and receives treatment 

2

 Jo.H. is defendant's fourteen-year-old biological child. 
4 A-3991-19

for Attention Deficit Hyperactivity Disorder. The child engages in certain selfharming behaviors and attends a specialized after-school program.

In 2015, the child was removed from the custody of his biological mother 

and was eventually placed in defendant's care.3

 On Monday, June 18, 2018 the 

Division received a Child Protective Service referral from J.H.'s elementary 

school. The child approached the school nurse with a bruise on his left arm and 

told the nurse he was beaten with a belt the preceding Friday evening. J.H. 

explained he was punished because he had not done his homework and because 

a teacher had called defendant to report that he was misbehaving at school.

Division caseworker Isaac Hatten went to the school to investigate the 

report. Hatten observed "long diagonal fresh marks" on J.H.'s upper and mid 

back. Hatten also saw old marks on both arms, throughout the child's chest and 

abdomen, and on both legs. When Hatten asked J.H. to indicate where he was 

hit with the belt, the child pointed to the area with the fresh marks. Hatten took 

photographs of J.H.'s back and arm. 

Hatten next interviewed defendant, who admitted to spanking J.H. three 

times with a belt. When asked about the June 15, 2018 incident, she reported 

that she had tried to spank J.H.'s legs, but because he kept moving, she spanked 

3 The child spent some time in foster care before being placed with defendant. 
5 A-3991-19

him on the arm instead. Defendant denied spanking him on his back. Hatten 

interviewed additional family members at the home as part of his thorough 

investigation. 

The next day, Hatten and his supervisor discussed the case and determined 

that a Dodd4 removal of J.H. and Jo.H was warranted based on the severity of 

the bruises on J.H.'s back. Hatten prepared an investigation summary in which 

he made the following findings: 

Allegations that [defendant] physically abused [J.H.] 

are [s]ubstantiated. There is a preponderance of 

evidence that establishes that [J.H.] is an abused child 

as defined by definition. The aggravating factors taken 

into account are significant lasting physical and 

psychological impact on [J.H.]. [J.H.'s] safety required 

separation from [defendant]. Evidence suggests a 

pattern of abuse by [defendant] towards [J.H.]. 

Doctor Stephanie V. Lanese examined J.H. on June 27, 2018 and prepared 

a report. She determined "based on this history and the photographs taken by 

Child Protection and Permanency, the marks on their photographs are consistent 

with being hit with a soft looped object, such as a belt." 

4

 A "Dodd removal" is an emergency removal of a child from the custody of a 

parent without a court order, as authorized by N.J.S.A. 9:6-8.29, a provision 

included within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. 
6 A-3991-19

Caseworker Hatten and Dr. Lanese testified for the Division at the factfinding hearing. The court found both witnesses to be credible. The court 

remarked that Hatten "was prepared to testify; he gave prompt answers; he was 

intelligent; he had good tone and even demeanor; he was professional in his 

presentation; I found his answers to be candid; his testimony was reasonable; he 

provided good, clear explanation. I find him to be inherently believable." 

As to Dr. Lanese, the court noted:

[She] was qualified, as the parties stipulated, as an 

expert in pediatric childcare. The [c]ourt finds her to 

be very credible. She was prepared to testify; she had 

great eye contact; she's intelligent; experienced; she 

had a very professional demeanor; she gave straight 

answers; she didn't embellish; she was reasonable; she 

was very candid in cross-examination . . . she gave good 

explanations; she was inherently believable.

The court also reviewed various reports and photographs. Based on the 

evidence adduced by the Division, the court concluded the corporal punishment 

administered by defendant was excessive, constituting abuse/neglect. 

Defendant raises the following arguments for our consideration:

POINT I

THE RECORD DID NOT PROVIDE THE TRIAL

COURT SUFFICIENT EVIDENCE ON WHICH TO

BASE THE FINDINGS OF FACT OR CONCLUSIONS

OF LAW MADE.
7 A-3991-19

POINT II

BECAUSE [DEFENDANT] WAS DENIED

COUNSEL FOR CRITICAL PROCEEDINGS AND

HER ASSIGNED COUNSEL FAILED TO FULFILL

THE OBLIGATION TO PROVIDE FAITHFUL AND

ROBUST PARTISAN REPRESENTATION,

[DEFENDANT] WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL GUARANTEED TO

HER, THUS THE JUDGMENT MUST BE REVERSED

(not raised below).

A. DENIAL OF COUNSEL FOR MONTHS OF

LITIGATION.

B. COUNSEL, ONCE ASSIGNED, WAS

INEFFECTIVE.

a. NOT OBJECTING TO EMBEDDED

HEARSAY IN DOCUMENTS AND

TESTIMONY OF WITNESSES.

b. NOT BEING PREPARED TO

SUPPORT HIS OBJECTION TO

HATTEN'S TESTIMONY ON WHAT,

IF ANY, INSTRUMENT MAY HAVE

CAUSED THE MARKS DEPICTED IN

PHOTOGRAPHS IN EVIDENCE.

c. NOT OBJECTING TO DCPP'S

CLOSING ARGUMENT AT TRIAL.

i. NOT OBJECTING TO

PREJUDICIAL COMMENTS

ON [DEFENDANT'S]

ABSENCE, [DEFENDANT'S]

NOT TESTIFYING AND
8 A-3991-19

[DEFENDANT'S] NOT

PRESENTING EVIDENCE.

ii. NOT OBJECTING TO

REFERENCES TO FACTS NOT

IN EVIDENCE.

iii. NOT OBJECTING TO

REFERENCES TO THINGS

THAT NEVER HAPPENED.

d. DEFECTS IN THE DEFENSE

CLOSING ARGUMENT AT TRIAL.

e. FAILURE TO ADDRESS

INATTENTIVENESS TO THE TITLE

30 CARE AND SUPERVISION CASE

REGARDING [Jo.Ha.].

f. NOT OBJECTING TO ERRORS IN

THE TRIAL COURT'S OPINION.

g. CONCLUSION.

II.

We first address defendant's contention that the trial court's finding of 

abuse/negligence was not supported by sufficient credible evidence. We begin 

our analysis by acknowledging the legal principles governing this appeal. 

We defer to the fact-findings by the Family Part because of its "superior 

ability to gauge the credibility of the witnesses who testify before it and because 

it possesses special expertise in matters related to the family." N.J. Div. of 
9 A-3991-19

Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. 

Cesare, 154 N.J. 394, 413 (1998)); see also N.J. Div. of Youth & Family Servs. 

v. L.L., 201 N.J. 210, 226 (2010) (fact findings that are supported by “substantial 

credible evidence in the record” are to be upheld); N.J. Div. of Youth & Family 

Servs. v. M.M., 189 N.J. 261, 279 (2007) (an appellate court defers to the trial 

court's credibility determinations, evaluation of the underlying facts, and 

inferences drawn therefrom unless they are "so wide of the mark that a mistake 

must have been made.") (quoting C.B. Snyder, Inc. v. BMW of N. Am., Inc., 

233 N.J. Super. 65, 69 (App. Div. 1989)). Questions of law, in contrast, are 

reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to any special 

deference."). 

To establish abuse or neglect, the Division must show by a preponderance 

of the "competent, material and relevant evidence" that the child is "abused or 

neglected" as defined in N.J.S.A. 9:6-8.21. N.J. Div. of Youth & Family Servs. 

v. J.Y., 352 N.J. Super. 242, 260–65 (App. Div. 2002). Under this statutory 

framework, an abused or neglected child is defined as 

a child less than 18 years of age whose . . . physical, 

mental, or emotional condition has been impaired or is 
10 A-3991-19

in imminent danger of becoming impaired as the result 

of the failure of his parent or guardian . . . to exercise a 

minimum degree of care . . . in providing the child with 

proper supervision or guardianship, by unreasonably 

inflicting or allowing to be inflicted harm, or 

substantial risk thereof, including the infliction of 

excessive corporal punishment . . . .

[N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).] 

The phrase "excessive corporal punishment" is not statutorily defined and 

as a result, abuse and neglect cases arising on this ground require a fact-sensitive 

analysis. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011); 

see also N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 145 

(App. Div. 2015) (stating that excessive corporal punishment cases are 

"determined on a case-by-case basis"). The law of this State recognizes "'a 

parent may inflict moderate correction such as is reasonable under the 

circumstances of a case.'" N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. 

Super. 504, 510 (App. Div. 2010) (quoting State v. T.C., 347 N.J. Super. 219, 

239–40 (App. Div. 2002)). However, when punishment exceeds "what is proper 

or reasonable," it is deemed excessive. Id. at 511. This determination must 

focus on the harm caused to the child, not the parent's intent. N.J. Div. of Youth 

& Family Servs. v. M.C. III, 201 N.J. 328, 344 (2010); K.A., 413 N.J. Super. at 

511. 
11 A-3991-19

In determining whether corporal punishment is proper or reasonable, 

careful consideration must be given to the "nature and extent of the injuries" and 

the "instrumentalities used to inflict them." S.H., 439 N.J. Super. at 146. Courts 

also will consider "(1) the reasons underlying [the defendant's] action; (2) the 

isolation of the incident; and (3) the trying circumstances under which [the 

defendant] was undergoing . . . ." K.A., 413 N.J. Super. at 512. Age is an 

additional consideration: "one ought not assume that what may be 'excessive' 

corporal punishment for a younger child must also constitute unreasonable 

infliction of harm, or excessive corporal punishment in another setting involving 

an older child." P.W.R., 205 N.J. at 33. Finally, courts will consider whether 

the defendant recognized his or her error, was remorseful, and was open to 

receiving help. See S.H., 439 N.J. Super. at 147–48. 

We gain further insight into the boundaries of proper and reasonable 

corporal punishment by closely examining the facts and circumstances arising 

in the foregoing legal precedents. In K.A., the defendant mother K.A. got into 

a homework-related altercation with her then-eight-year-old daughter A.A. 413 

N.J. Super. at 505–06. A.A. was diagnosed with a pervasive developmental 

disorder and attention deficit disorder. Id. at 506. K.A. sent A.A. to her room 

for time out, but A.A. refused to stay inside, defying K.A.'s specific instructions. 
12 A-3991-19

Ibid. K.A. struck A.A. on the shoulder four or five times with a closed fist 

before sending her back to her room. Ibid. Round bruises resembling paw prints 

appeared on A.A.'s shoulder and were noticed by a classroom aide. Ibid. The 

Division made a final determination to substantiate allegations of abuse or 

neglect against K.A. Id. at 505. 

We reversed the finding of neglect/abuse, noting that K.A. had a 

"psychologically disruptive child, unable or unwilling to follow verbal 

instructions or adhere to passive means of discipline such as time-out." Id. at 

512. We noted K.A. had no support from a spouse or other family members to 

raise a developmentally challenged child—she was overwhelmed and acted in 

frustration. Ibid. She did not break any skin and A.A. did not require medical 

intervention. Ibid. We also noted "K.A. accepted full responsibility for her 

actions, was contrite, and complied with Division-sponsored counseling." Ibid. 

In C.H., the parent struck her then-five-year-old child with a paddle in 

multiple locations, leaving behind three to four-inch red demarcations on her 

face. N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416 

(App. Div. 2010). We sustained the finding of excessive corporal punishment, 

determining it was not an isolated incident, as the parent admitted to 

administering corporal punishment to the child when she was three years old. 
13 A-3991-19

Id. at 417. Furthermore, the parent did not show remorse and did not participate 

in counseling. Id. at 416–17. 

In P.W.R., the Supreme Court reversed our affirmance of the trial court's 

finding of abuse and neglect. 205 N.J. at 40. The Division had previously 

determined that allegation of physical abuse was unfounded, though the 

allegation of neglect was substantiated. Id. at 27. The parent in that case 

occasionally slapped the sixteen-year-old daughter in the face as discipline. Id. 

at 23–24. The slaps did not leave behind marks. Id. at 36. The Court held:

[a] slap of the face of a teenager as a form of 

discipline—with no resulting bruising or marks—does 

not constitute 'excessive corporal punishment' within 

the meaning of N.JS.A. 9:6-8.21(c)(4)(b). That is not 

to suggest approval of such behavior. But, by 

qualifying the prohibition with the term, 'excessive,' the 

statutory language plainly recognizes the need for some 

parental autonomy in the child-rearing dynamic that, of 

necessity, may involve the need for punishment.

[Id. at 36.] 

K.A., C.H., and P.W.R. underscore the highly-fact-sensitive analysis 

required in child abuse and neglect cases and offer benchmarks to determine 

whether a parent or legal guardian has crossed the line from proper and 

reasonable discipline into the realm of excessive corporal punishment. 

Applying these guiding principles to the present case, we conclude the evidence 
14 A-3991-19

adduced at the factfinding hearing supports the Family Part's finding of 

excessive corporal punishment. 

The June 15, 2018 incident was not an impulsive, spontaneous reaction as 

in K.A.. Rather, defendant acknowledged she had received information 

regarding J.H.'s poor behavior from the school in the afternoon. She waited for 

him to return home from the afterschool program and prepare for bed before 

striking him with the belt. The corporal punishment was planned and not done 

in spontaneous frustration based on the child's misbehavior committed 

immediately before corporal punishment was administered. 

Second, this was not an isolated incident. Defendant admitted that she 

"spanked" J.H. three times with his belt. Other family members corroborated 

that defendant employed corporal punishment on multiple occasions. 

The trial court, moreover, recognized and accounted for other relevant 

considerations. The court, for example, considered J.H.'s age as in P.W.R. The 

court also acknowledged J.H.'s behavioral problems and the challenges they 

posed to defendant to maintain discipline and to discourage misbehavior.

Importantly, the court also accredited the expert testimony of Dr. Lanese, 

and carefully examined the photographs depicting the wounds that had recently 

been inflicted. Looking at the photographs in evidence, the judge remarked the 
15 A-3991-19

child "got whipped." Those marks, considered in context with other relevant 

considerations, support the conclusion that the belt strikes were not proper and 

reasonable in the circumstances. K.A., 413 N.J. Super. at 511–12. 

We add that the court did not focus on defendant's intentions, but rather 

properly focused on the harm to the child. See M.C. III, 201 N.J. at 344. The 

trial court remarked,

There's no question that [defendant] used a soft object, 

such as a belt, which [J.H.] indicated was what he was 

hit with and made contact with [J.H.'s] body. Whether 

she intended to hit his legs, but made contact with his 

back, is of no moment to the [c]ourt. The fact that she 

struck him multiple times, leaving the markings on his 

back, that they hurt him, and leaving the markings on 

his arms, those are, to the [c]ourt, uncontroverted.

Based on all of the evidence adduced at the hearing, the court concluded, 

The [c]ourt finds that this type of punishment is 

excessive corporal punishment, and the [c]ourt finds 

that the Division has met its burden of proof by a 

preponderance of the competent, relevant material 

evidence. As indicated in other case law, the [c]ourt 

need not wait till the child is actually harmed for there 

to be abuse and neglect

In this case, I'm not prepared yet to find that there's 

been a psychological harm caused as a result of the 

corporal punishment inflicted. There's no testimony 

there was continued punishment which might lend itself 

to the potential of psychological or physical harm to 

[J.H.]. But I am satisfied that this is beyond mere 
16 A-3991-19

acceptable corporal punishment. This punishment 

inflicted upon [J.H.] meets squarely the definition of 

excessive corporal punishment and, for that, the [c]ourt 

will enter a Title 9 finding as to [defendant]. 

We agree. 

III.

We next address defendant's contention she was denied counsel at critical 

proceedings. It is well-settled a parent has a fundamental and constitutional 

right to effective assistance of counsel in Title Nine cases. N.J. Div. of Youth 

& Family Servs. v. R.D., 207 N.J. 88, 113 (2011) (noting that "children and 

indigent parents in . . . Title Nine . . . proceedings are entitled to representation 

by the Office of the Public Defender."); see also N.J. Div. of Child Prot. & 

Permanency v. L.O., 460 N.J. Super. 1, 3 (App. Div. 2019) ("Because the 

potential consequences of [child abuse or neglect] proceedings are of significant 

magnitude, we agree that, in this setting, counsel should be made available for 

indigent parents and guardians both at the administrative level and in any appeal 

of right to this court.").

N.J.S.A. 9:6-8.43(a) requires a Family Part judge to advise a defendant in 

an abuse or neglect proceeding of the right to counsel and, if the defendant is 

indigent, the ability to apply for representation through the Office of the Public 

Defender. To qualify for Public Defender representation, a defendant must fill 
17 A-3991-19

out a "Form 5A." N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 

428, 437 (App. Div. 2013).

Defendant claims on appeal that "[t]hrough the eve of a fact-finding trial, 

[defendant] had no attorney and lacked the expertise or knowledge necessary to 

defend herself." Defendant further asserts, "through no fault of her own, [she] 

had no ability to investigate or present a defense." These claims are contradicted 

by the record. Defendant was informed of her right to counsel on at least two 

separate occasions. On June 28, 2018, the court convened an OTSC hearing on 

the issue of temporary custody. Defendant and two codefendants all appeared 

without counsel. The court noted that court personnel had asked them if they 

wanted to fill out a Form 5A and the court confirmed on the record that they 

each intended to represent themselves at the OTSC hearing. 

The fact-finding hearing originally was scheduled for October 18, 2018. 

Defendant and codefendants once again appeared without counsel. At the start 

of the hearing, the court reminded defendant she had the right to an attorney, 

and informed her that 

[a]n attorney does not represent you unless that attorney 

sends a Letter of Representation to the Court. If you 

cannot afford an attorney, you can fill out a form and 

the [c]ourt will determine whether or not you're 

qualified for the appointment of a [c]ourt-appointed 

attorney to represent you in the matters, or you can 
18 A-3991-19

proceed on your own, which is referred to as pro se, 

without the aid of an attorney.

We're going to proceed in a limited capacity today, but 

if at any time during the pendency of this litigation, you 

determine you'd want to retain an attorney or have a 

[c]ourt-appointed attorney for you, just let the [c]ourt 

know. Okay?

The judge asked defendant whether she understood what he had just 

explained, and defendant replied "Yes." The Deputy Attorney General 

representing the Division interjected, advising the court, "I think that 

[defendant] filled a [Form] 5A out today." Defendant confirmed that she had 

submitted the form. The court responded, "Okay. So what we're going to do 

with respect to your matter, we're going to postpone that aspect so you can 

consult with your attorney on this matter. Okay?" 

The matter was adjourned for four months to allow defendant's courtappointed attorney ample time to prepare. In these circumstances, we reject 

defendant's contention that she was deprived of the right to appointed counsel.

IV.

Finally, we turn to defendant's contention she received ineffective 

assistance from counsel who was appointed to represent her at the factfinding 

hearing. The Appellate Division has adopted the Strickland/Fritz standard for 

ineffective-assistance-of-counsel in criminal matters, termination of parental 
19 A-3991-19

rights cases, and for findings of abuse and neglect. N.J. Div. of Youth & Family 

Servs. v. M.D., 417 N.J. Super. 583, 613–14 (App. Div. 2011); N.J. Div. of 

Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010). We 

thus apply the Strickland/Fritz two-pronged test to defendant's contention she 

received ineffective assistance at the factfinding hearing.

To meet the first prong of the Strickland test, a defendant must show "that 

counsel made errors so serious that counsel was not functioning as the 'counsel' 

guaranteed by the Sixth Amendment." 466 U.S. at 687. Reviewing courts 

indulge in a "strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance." Id. at 689. The fact that a trial 

strategy fails to obtain for a defendant the optimal outcome is insufficient to 

show that counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002) 

(citing State v. Bey, 161 N.J. 233, 251 (1999)).

The second prong of the Strickland test requires the defendant to show 

"that counsel's errors were so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently, 

counsel's errors must create a "reasonable probability" that the outcome of the 

proceedings would have been different if counsel had not made the errors. Id.

at 694.
20 A-3991-19

Defendant contends her trial counsel presented "little defense to the claim 

of excessive corporal punishment in the first place." We believe that 

characterization does not properly describe the situation at hand; counsel's 

performance does not constitute deficient representation but rather reflects the 

strength of the Division's case and the fact that most of the relevant 

circumstances are incontrovertible. Defendant's more specific claims of 

ineffective assistance lack sufficient merit to warrant all but brief discussion in 

this opinion. R. 2:11-3(e)(1)(E). 

Defendant argues counsel should have objected to embedded hearsay in 

documents and the testimony of Dr. Lanese and Division caseworker Hatten. 

The record reflects the documentary evidence considered by the trial court was 

properly admitted. Each witness provided the foundation for the records they 

relied upon. See In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. 

Div. 1969) ("Reports . . . prepared by the qualified personnel of a state agency 

charged with the responsibility for overseeing the welfare of children in the 

State, supply a reasonably high degree of reliability as to the accuracy of the 

facts contained therein."). Rule 5:12-4(d) permits the Division to "submit into 

evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel 

or professional consultants." The Division's reports fall under the business 
21 A-3991-19

records exception found in N.J.R.E. 803(c)(6). See M.C. III., 201 N.J. at 347. 

We add the dangers of hearsay are mitigated at a bench trial. N.J. Div. of Child 

Prot. & Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016). 

Furthermore, Family Part judges are presumed to be capable of relying on 

evidence for its permissible purposes and are capable of discounting 

inadmissible embedded hearsay. Ibid. 

Defendant contends her trial counsel was ineffective for "[n]ot being 

prepared to support his objection to Hatten's testimony on what, if any, 

instrument may have caused the marks depicted in photographs in evidence." 

But even accepting for the sake of argument the Division caseworker lacked 

qualification to opine on what instrument caused the markings depicted in the 

photographs of the child's wounds, the outcome of the hearing would not have 

been different had an objection been made and sustained. The trial court relied 

not only on Dr. Lanese's medical opinion as to the instrument employed but also 

defendant's admission to the Division that she used a belt to administer corporal 

punishment on this occasion. 

Defendant contends counsel should have objected to what she 

characterizes as prejudicial comments made by the Deputy Attorney General in 

summation. On appeal, defendant argues her counsel should have objected to 
22 A-3991-19

remarks concerning defendant's absence from the second day of the fact-finding 

trial and her decision not to testify or present evidence. We conclude these 

comments had no effect on the judge sitting as the trier of fact.

Relatedly, defendant claims trial counsel rendered ineffective assistance 

by "[n]ot objecting to references to facts not in evidence" or to "things that never 

happened." By way of example, defendant contends the Division in its 

summation improperly argued the child "could have easily been hit in the face, 

in the eye, in the mouth.'" We see nothing inappropriate in commenting on the 

potential risk of physical harm associated with repeatedly striking a child with 

a belt, especially given defendant's acknowledgment that J.H. was resisting. Nor 

was it improper for the Division to argue in summation that defendant "laid in 

wait" for J.H. to come home. As we have noted, the fact the corporal punishment 

was planned—rather than administered in spontaneous frustration—was a 

relevant circumstance for the court to consider. See K.A., 413 N.J. Super. at 

512. 

Finally, we address defendant's contention her trial counsel's closing 

argument was deficient because it "spanned less than a page of transcript." We 

reject the notion that brevity suggests professional incompetence. The maxim 

"less is more" is often applicable to the courtroom setting. Moreover, in 
23 A-3991-19

applying the Strickland/Fritz test we afford substantial deference to such 

strategic decisions. Cf. Jones v. Barnes, 463 U.S. 745, 751–52 (1983) (noting 

that the hallmark of effective appellate advocacy is the ability to "winnow[] out 

weaker arguments and focus[] on one central issue if possible, or at most, on a 

few key issues"). We note in closing that defendant fails to suggest additional 

arguments counsel might have mustered in summation that would have turned 

the tide of the evidence of excessive corporal punishment. 

To the extent we have not addressed them, any remaining arguments 

raised by defendant lack sufficient merit to warrant discussion in this opinion. 

R. 2:11-3(e)(1)(E).

Affirmed.